Seventh Circuit Judge Richard Posner has stirred up a hornet’s nest by going to the internet independently to find facts he believed to be relevant to the appeal of a grant of summary judgment.
In Rowe v. Gibson, 2015 WL 4934970 (7th Cir. Aug. 19, 2015), a prisoner representing himself asserted that he had been cruelly and unusually punished by the way the prison had administered ranitidine, a drug he needed to treat a painful gastroesophageal reflux disease. Ranitidine is made in prescription strength by GlaxoSmithKline and in over-the-counter form by Boehringer Ingelheim and sold under the trade name Zantac. The district court granted summary judgment based on a doctor’s affidavit which said that giving a dose every 12 hours was sufficient. The prisoner said the failure to administer a dose 30 to 60 minutes before each meal needlessly inflicted pain.
The Seventh Circuit reversed the summary judgment and said the case presented fact issues that needed to be tried. Judge Posner’s opinion discussed at length information he personally found on the internet – principally the Boehringer Ingelheim and Mayo Clinic websites – which he said supported the prisoner’s claim. He justified his departure from the record before him by saying that he was not treating the website information as being conclusively true. Rather, he was only using it to suggest a fact dispute because it might be true.
Judge Hamilton, in dissent, decried the departure from the record that was made in the district court. Judge Posner’s internet research also departs from the ABA’s 2008 Model Code of Judicial Conduct Rule 2.9(c), which specifically instructs judges not to investigate the facts of cases independently.